Sep 18 FISA Court Schools NSA Detractors on the Fourth Amendment

Yesterday, the administration released a partially redacted copy of the FISA court's opinion on the legality and Constitutionality of the government's request to collect telephony metadata. The court found it to be both legal and Constitutional, but for the purposes of this post, we will focus on the constitutional justification. The court, citing Supreme Court precedent in Smith v. Maryland(1979). And before the ideologues on the Left run off frothing at the mouth about how Smith was decided by a "right-wing" majority on the Court, I think you should know that the opinion was written by Justice Harry Blackmun, who also authored Roe v. Wade, perhaps the court's most defining moment on privacy rights.

But I digress. The FISC, it turns out, reached the exact same conclusion I did with respect to meta data and the Fourth Amendment, which, in essence is that yelling about applying the Fourth Amendment to metadata is a bunch of smoke being blown up the rear end of an unsuspecting public. From the declassifiedopinion,

The Supreme Court in Smith recognized that telephone companies maintain call detail records in the normal course of business for a variety of purposes. Id. at 742 (“All subscribers realize… that the telephone company has facilities for making permanent records of the number they dial…”). [...] Thus, the Supreme Court concluded that a person does not have a legitimate expectation of privacy in telephone numbers dialed and, therefore, when the government obtained that dialing information, it “was not a ‘search,’ and no warrant was required under the Fourth Amendment.

So, you dial a number (or go to a website, for that matter), and you are willingly giving the phone company (or the Internet company) that information in order so they can transmit your call (or relay your IP request). At this point, you have no expectation of privacy about the number dialed nor yours as you have given it freely to the phone company - a third party. But you do maintain your privacy rights to your identity so that the government cannot learn the identity of the person who has a given number without a warrant. You also retain your right to privacy with respect to the content. But not with respect to the metadata. There is no Fourth Amendment right to privacy with respect to metadata. None. Zero. Nil. Nada. Bupkis. Got it? Good.

I know, I know. The know-it-all Libertarians are fuming right about now to tell me off about how Smith was a case about a single individual being targeted and the current NSA programs are gobbling off meta data belonging to nearly everyone. The court addresses that, too, and in a very simple way: basically, the court states that in a case where there is no individual right to privacy, you cannot invent that right for the collective out of nothing. Hence, the scale of collection is irrelevant to whether or not it is protected against by the Fourth Amendment.

“[s]o long as no individual has a reasonable expectation of privacy in meta data, the large number of persons whose communications will be subjected to the … surveillance is irrelevant to the issue of whether a Fourth Amendment search or seizure will occur.” Id. at 63. Put another way, where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly-situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilio.

You may read the full opinion here. Both the Constitution and the settled Supreme Court precedence - penned by the author of Roe, no less - are unmistakably clear. The NSA does not have to meet the high burden of the Fourth Amendment in order to get a court order to obtain metadata.

We all know what's next. An assault on the organization and legitimacy of the Foreign Intelligence Surveillance Court itself by the libertarians clueless about the Constitution. To be sure, the structure of the court itself isn't perfect, and the president himself spoke of some possible reforms. But the FISC is a duly constituted court under Article I Section 8 of the Constitution, and more importantly, attacking its structure is no counter to its substantive ruling outlined above.

I'm glad that people are suddenly finding the Constitution interesting. But to those prone to setting their hair ablaze, may I suggest a reading of the document before running around with your hair on fire? And please, please, please stop conflating rulings you do not like with what is and is not Constitutional. Everything you like isn't constitutional, and plenty of things you may not like is. So if you've got a problem with a policy or law, fine, address that. But quit saying a law, or a court ruling, or a court itself is unconstitutional simply because you don't like said law, ruling or court. And for goodness' sake, quit trolling the Fourth Amendment and going bonkers about something the Fourth Amendment doesn't even apply to.